Mirror of Justice

Governor Tom Corbett's Commencement Speech at Villanova

I want to echo Lisa's comment below about the rich discussion during the symposium on St. Thomas More sponsored by the Murphy Institute and the Center for Thomas More Studies. Speaking of Thomas More, Governor Tom Corbett of Pennsylvania delivered the commencement address at Villanova Law a couple weeks ago and spoke about Thomas More and Abraham Lincoln as role models for lawyers. The address is well worth watching, which you can do at this link (starting at 21:00).

Catholicism and Liberalism: Raz or Rawls?

I apologize for light blogging of late, partly due to a lot of travel (including a wonderful visit to Scandinavia during the late winter) and administrative duties. A particular highlight was a visit to the Newman Institute for Catholic Studies at Uppsala in Sweden (English web site here), where the Jesuits are doing great work adjacent to the Swedish state university there. (The motto of the Institute is "Kan man tro på vetandet?," or "Can you believe in knowledge?"--a subtly Lonerganian tag.)

A few months ago, I participated in a panel on Cathy Kaveny's book Law's Virtues at the Brookings Institute moderated by Bill Galston and alongside EJ Dionne and Melissa Rogers from Brookings and Margaret Little from Georgetown's Kennedy Institute. The transcript of the event is here. As I noted in my remarks, while I like many of Cathy's moves in the book (emphasizing the pedagogical function of law and some detailed treatment of the ethics of voting, for example), I do have a deep reservation about the basic argument, namely that there is a convergence between Joseph Raz's account of autonomy and the concept of solidarity in Catholic social teaching. Razian autonomy and its attendant pluralism (according to which "incompatible forms of life are morally acceptable and they display distinct virtues, each capable of being pursued for its own sake," The Morality of Freedom, p. 396) are, it seems to me, difficult to square with Catholic views on the human good--or at least not without a great deal more by way of argument.

Indeed, I pointed out that there is a deep reservation from within liberalism on this matter. For that, I invoked Rawls--as interpreted by Martha Nussbaum in her paper "Perfectionist Liberalism and Political Liberalism (39 Philosophy and Public Affairs 3 (2011))--for the view that equal respect is, for this limited purpose, a preferable political, non-perfectionist alternative to Raz's view. As Nussbuam argues, Raz's view entails expressive subordination of those who reject his moral pluralism:

Expressive subordination is a form of religious establishment. The fact that Raz’s view is secular makes no difference to that conclusion. And it is wrong for the reason that religious establishment is always wrong: it offends against the equality of citizens. It tells them, to quote James Madison, that they do not all enter the public square “on equal conditions.” This conclusion apparently does not trouble Raz: if they do not accept the fact of pluralism and the ideal of autonomy, it is fine to treat them unequally. But it troubles me, as it troubled Larmore and Rawls. It is because many people think that Raz’s sort of comprehensive liberalism is the only viable form of liberalism that they also think that liberalism is not neutral about the good life, but is a form of religion in its own right. 35

Now, I'm not putting all of my bets in the end on either Razian autonomy or Rawlsian respect, but only making the point here that Rawls provides within the contours of liberal political theory a more adequate account and one more congenial (because so chaste in its aspirations) to some Catholic conceptions of politics.

The final question at the event came from Bill Galston, who (typically) asked the smartest question that went right to the heart of the issue:

GALSTON: Now, here's my question. And let me structure it in the following way. I'm going to address my question to Mike Moreland and after I've done that I'm going to invite Cathy to respond to his response. Then we'll see what happens.

KAVENY: That's like a pool shot.

GALSTON: A bank shot technically speaking. Okay. And back to this remarkable illegitimate offspring of Thomas Aquinas and John Locke, namely Joe Raz.

Now, you [Cathy] make an accurate and important point when you say Raz contends that the reason for protecting freedom stems not from the dearth of objective value but rather from a surfeit of such value. More specifically, he holds that the rationality for protecting freedom stems from the recognition there are a number of mutually incompatible but objectively worthwhile, morally worthwhile, ways of living one's life. All of which deserve protection precisely because they are objectively, morally worthwhile.

Now, as a student and devotee of Isaiah Berlin, I think I know where that comes from and I think I know where Raz got it. So, here's my question for Mike Moreland. From the Catholic standpoint as you understand it, what is the status of the proposition of morally worthwhile but mutually incompatible ways of life? Is that a proposition with which Catholic thought as you understand it is comfortable?

My answer at the end of the event was, to paraphrase, "no." But I'm grateful to Bill Galston, Cathy Kaveny, and the others at Brookings for the rich discussion.

Søren Kierkegaard

I was reminded by this excellent post over at Commonweal by my friend Scott Moringiello that yesterday was the bicentenary of the birth of the great Danish theologian Søren Kierkegaard. I visited Kierkegaard's grave while on a visit to Copenhagen a few months ago--as I joked with a friend, for the purpose of telling Kierkegaard he was right all along. Stepping back from the torrent of words (in law and otherwise) around us, there are a handful of indispensable authors for understanding the human condition, and Kierkegaard is, in my view, one of them. A bit from Kierkegaard's journals:

Christianity has been abolished somewhat as follows. Men have entrenched themselves more and more firmly in the fixed idea that Christianity's meaning should be in a trivial sense to make life easier and easier, the temporal easier and easier, something which again is consistent with the fact that the preaching of Christianity has for a long time been, in a trivial sense, an occupation, so these rascally preachers, for the sake of profit, have administered Christianity just as shopkeepers or journalists—nothing better on the market—and therefore the meaning of Christianity becomes in the trivial sense: to make life easier.

Thereby they have succeeded in completely abolishing Christianity, for Christianity is not some physical externality which remains even though untrue affirmations are made about it; no, Christianity is an inwardness which is transformed by the affirmations.

And since Christianity has been abolished this way, the whole realm of the temporal has also come to be muddled, with the result that it is no longer a question of a revolution once in a while, but underneath everything is a revolution which can explode at any moment.

And this is consistent with the fact that we have abolished Christianity as the regulating weight, as weight, of course, but as regulating weight.

It certainly is true, as I have pointed out somewhere else, that the more meaningless we make life, the easier it is, and therefore that life in one sense has actually become easier, not, as the pastors falsify, by means of Christianity, but by abolishing Christianity. But, on the other hand, this nevertheless has its difficulty; when a man or when a generation must live in and for merely finite ends, life becomes a whirlpool, meaninglessness, and either a despairing arrogance or a despairing disconsolateness.

There must be weight—just as the clock or the clock's works need a heavy weight in order to run properly, and the ship needs ballast.

Christianity would furnish this weight, this regulating weight, by making it every individual's life-meaning that whether he becomes eternally saved is decided for him in this life. Consequently Christianity puts eternity at stake. Into the middle of all these finite goals, which merely confuse when they are supposed to be everything, Christianity introduced weight, and this weight was intended to regulate temporal life, both its good days and its bad days, etc.

And because the weight has vanished—the clock cannot run, the ship steers wildly—and for this reason human life is a whirlpool.

Søren Kierkegaard’s Journals and Papers, ed. and trans. Howard V. Hong and Edna H. Hong, Volume I, pp. 437-38.

Chris Eisgruber and Lawyer-University Presidents

Congratulations to Chris Eisgruber--a fellow member of the law and religion guild--upon his election as the 20th President of Princeton University. Eisgruber's book (co-authored with Larry Sager) Religious Freedom and the Constitution (Harvard, 2010) has been a formidable contribution to the field (especially for those of us who disagree with aspects of it), and Chris has been a generous conversation partner at many law and religion gatherings.

This also continues an interesting story about lawyers being tapped for university presidencies. With some notable exceptions (Robert Maynard Hutchins and Kingman Brewster come to mind), it seems to me there was a longtime bias against JDs (or LLBs in a bygone era) serving as presidents of elite institutions, but there is a trend over the past few decades in the other direction--Lee Bollinger, James Freedman, and Derek Bok are just a few examples. Why? My guess is that it's a significant marker of the acceptance of legal scholarship as a research field in the wider academy and the skills that lawyers often bring to such administrative positions--and, of course, the talents of the individual candidates.

Jason Brennan on Rawls

I've just finished a long slog with 75 1Ls through John Rawls's brilliant but maddening A Theory of Justice in an elective course on justice (I time it to coincide with Lent). Given the importance of distributive justice to much of what we discuss here at MOJ, I thought these comments by Jason Brennan at 3:AM Magazine were interesting--see especially his answer to the first question about Fairnessland and ParetoSuperiorland and what he says in the second answer about the shortcomings of legal guarantees. I do think there are some (not all, to be sure) interpretations of Catholic social thought that commit themselves (usually without the same level of philosophical rigor as Rawls) too quickly to a kind of Rawlsian fairness approach and would thereby be subject to the reservations Jason Brennan briefly signals here:

3:AM: You next turned to Rawls, probably the greatest liberal political philosopher since Mill. You worry that his theory of justice is paradoxical and that following his principles works against the poor, contrary to his intentions. Can you show how?

JB: I don’t want to get bogged down in Rawls exegesis, so I’ll simplify the issue at the expense of perfect accuracy. At various times, Rawls indicates that he thinks there’s a trade-off between long-term economic growth and distributional goals. If we intervene with social-democratic institutions in the attempt to help the poor, this will slow down growth in the long run. Rawls also seems to think that more free market institutions cannot realize the difference principle. Even if they were to help the poor, they don’t “aim” to help the poor, and so don’t count as realising justice. So, I ask readers to imagine two societies. One — Fairnessland – uses Rawls favored economic institutions, but has slower growth (2% a year for the least well-off class). The other — ParetoSuperiorland — uses laissez faire or welfare state capitalist institutions, but has faster growth (say 4% a year for the least well-off class). Thanks to redistribution, property allocation, and other interventions, the worst off in Fairnessland start off 50% richer than the worst off in ParetoSuperiorland. However, after 26 years of growth, the worst off in ParetoSuperiorland are much richer than the worst off in Fairnessland. It seems that if you really care about how well the poor are doing, in the long run, you must favour ParetoSuperiorland over Fairnessland. But, as I discuss in ‘Rawls’s Paradox’, Rawls seems to have certain controversial commitments — such as ideas about workplace democracy or about the relationship between institutional performance and people’s individual sense of justice — that commit him to favoring Fairnessland over ParetoSuperiorland. That seems wrong.

3:AM: Do you have a way of fixing this, or is there nothing for it but to abandon Rawls and look elsewhere?

JB: I find a lot to like in Rawls. Society is cooperative venture for mutual advantage. Everyone should have a stake in the rules of the game — the rules should be something we can all endorse. Property rights and other economics aren’t legitimate if they systematically leave large groups of people behind through no fault of their own. How well we do in life depends on the “rules of the game”, and if we think we can demand others play by the rules, they can in turn demand that the rules benefit them sufficiently to win their assent. Still, even at his best, Rawls is too strongly infatuated with the idea of legal guarantees. There is a difference between guaranteeing in the sense of rendering something inevitable (such as how quadrupling the minimum wage would guarantee rising unemployment) versus guaranteeing in the sense of issuing a legal declaration (such as when the Soviet Constitution of 1936 guaranteed free speech, privacy, and due process, or when Bush guaranteed no child would be left behind). A legal guarantee is no real guarantee. Many factors can and do disrupt, corrupt, or pervert legal guarantees. Legal guarantees are good only if they work. To give government the power to promote some valuable end does not automatically promote that end. In fact, sometimes, giving government the power to promote an end undermines that end. Finally, there is no guarantee that such legal guarantees will outperform other ways of generating the preferred goal. Sometimes, if people refuse to guarantee certain valuable outcomes, their refusal is part of what actually generates the valued outcome. As John Tomasi documents in his new book Free Market Fairness, and as I have complained elsewhere, Rawls doesn’t play fair when he assesses different kinds of regimes. He effectively compares property-owning democracy at the level of ideal theory with a not-very-charitable, non-ideal characterisation of more capitalistic regimes. At the very least, Rawlsians should admit that at the level of ideal theory, welfare state and even laissez faire capitalist regimes can satisfy Rawls’s theory of justice. In fact — and I say this as stringent critic of real-world command economies — I think even centralised, command economy socialism can satisfy Rawls at the level of ideal theory. One misuse of ideal theory would result from inferring that if some institutions are best under “ideal” conditions, then our real world institutions ought to come as close as possible to those institutions. Not so. Different conditions call for different tools. Ideal conditions might call for a wrench when non-ideal conditions call for a hammer. In other words, ideal theory is like designing cars on the assumption that they’ll never encounter slippery pavement, and will never be driven by bad drivers. If we had no such worries, we might not bother installing air bags. Here and now, though, we have compelling practical reason to not build cars like that. Analogously, if power didn’t corrupt, if people were invariably altruistic and omniscient, we might have reason to entrust government with a great deal of power. But if people are corruptible, if power is above all what corrupts, if people’s generosity depends very much on circumstances, and if relevant knowledge often is inaccessible to those who hold power, the kind of government we have reason to favour might not remotely be like that.

Francis of Assisi

I hope one of the fruits of the election of Pope Francis will be (indeed, already has been) a renewed appreciation for Francis of Assisi--the real Francis of Assisi, not distortions of him to which every age, most especially our own, is inclined. To that end, I've been dipping into the recent biography of Francis by Augustine Thompson, OP. Here's a bit from Thompson's introduction:

In historical writing, I usually avoid suggesting what the past should mean for modern readers. But as many have asked me what I have learned from Francis, I will make some suggestions as to what he has taught me as a Catholic Christian. I am sure that he will teach each reader something different, so these reflections are purely my own. First, he taught me that the love of God is something that remakes the soul, and doing good for others follows from this; it is not merely doing good to others. Francis was more about being than doing. And the others whom the Christian serves are to be loved for themselves, no matter how unlovable, not because we can fix them by our good works. Second, rather than a call to accomplish any mission, program, or vision, a religious vocation is about a change in one's perception of God and creation. Above all, it has nothing to do with success, personal or corporate, which is something that always eluded Francis. Third, true freedom of spirit, indeed true Christian freedom, comes from obedience, not autonomy. And as Francis showed many times in his actions, obedience is not an abstraction but involves concrete submission to another's will. Freedom means becoming a "slave of all." Last--and I hope this subverts everything I have just written--there are no ready and clear roads to true Christian holiness.

Augustine Thompson, OP, Francis of Assisi: A New Biography (Cornell UP, 2012), x.

A Libertarian Win for the Benedictines

With the help of the Institute for Justice, the Benedictine monks of St. Joseph Abbey in Louisiana (who partly support themselves through making caskets) have won a challenge in the Fifth Circuit to a (rent seeking) Louisiana restriction on the sale of caskets to licensed funeral homes. As Eugene Volokh notes, this is another impressive win by IJ in a case challenging state economic regulations as lacking rational basis, notwithstanding the high level of deference to the government in such cases. The opinion by Judge Patrick Higginbotham is here.

Pope Francis

As I say in this Philadelphia Inquirer story, I'm delighted (and surprised) by the election of Cardinal Bergoglio. He has a remarkable range of experiences--university professor, Jesuit novice master and provincial, spiritual director, and bishop. And I could be wrong about this, but I believe he may be the first pope with graduate training in the natural sciences (a master's degree in chemistry). There will be much celebration in my home this evening: my wife is from Buenos Aires.

Aquinas on Teaching

As Rick notes, today is the great Feast of St. Thomas Aquinas (it's also the date of Henry VIII's death in 1547, but let's set that aside). Some words about Aquinas on teaching from one of Aquinas's Dominican brothers, Brian Davies, OP of Fordham:

Does Aquinas have advice for teachers? As a matter of fact, he does. And it is rather sensible. For, so he says on more than one occasion, teachers should proceed with an eye on the intellectual standing of their students.  “Knowledge”, he suggests in his Summa contra Gentes, “is acquired in two ways, both by discovery without teaching, and by teaching. Consequently teachers begin to teach in the same way as discoverers begin to discover, namely by offering to the disciples' consideration principles known by them, since all learning results from pre-existing knowledge”. In other words, Aquinas thinks that teachers ought to start from where their students are. He also thinks that they ought to express themselves clearly. In the Summa theologiae he alludes to the view that “it is the duty of all teachers to make themselves easily understood”. And this sentiment is very much echoed in the way in which Aquinas himself communicates. He is a model of lucidity, especially in the Summa theologiae which actually begins with some reflections on the business of teaching those in their early stages of study. The subject matter of the Summa theologiae is the entire scope of Christian teaching, and in a foreword to the work Aquinas expresses himself unhappy with much that he knows to be available on this. “Newcomers to this teaching” he says, “are greatly hindered by various writings on the subject, partly because of the swarm of pointless questions, articles, and arguments”. They are also, says Aquinas, hindered by the fact that available texts all too often pursue the interests of their authors rather than “a sound educational method”, which Aquinas takes to involve being “concise and clear, so far as the matter allows”.

It is not, of course, easy to be concise and clear. And it is hard to get to the truth of things. So Aquinas also has another piece of advice to offer those who go in for teaching. For in his view they need to cultivate a high degree of humility. In particular, so he says, they should remember that all that they have is given to them by God, including their learning and their skills at conveying it. According to Aquinas, and as he puts it in the Summa contra Gentes: “God by His intelligence is the cause not only of all things that subsist in nature, but also of all intellectual knowledge”. At one level Aquinas suggests that this conclusion ought to leave teachers feeling proud, for it implies that they share in God's work of bringing it about that learning occurs. Or, as he says in a lecture delivered in 1256: “The minds of teachers ... are watered by the things that are above in the wisdom of God, and by their ministry the light of divine wisdom flows down into the minds of students”. At another level, however, Aquinas reckons that teachers should realize that their role as divine instruments ought to remind them of their need of divine assistance. Aquinas himself always prayed before writing, just as he prayed when he ran into any kind of difficulty. In the lecture of 1256 he notes that teachers of theology might feel that they are just not up to their task. But, he adds, “no one is adequate for this ministry by himself or from his own resources” and one may “hope that God may make one adequate”. And, so I might add, if one considers this remark in the context of Aquinas’s writings as a whole, it should not be viewed only as a word to theologians. It is a comment he would have offered to all teachers.

"Aquinas and the Academic Life," 83 New Blackfriars 336, 342-43 (2002).

 

Exploring the Catholic Intellectual Tradition

Boston College has a new issue here of its regular publication "C21 Resources" that explores the Catholic intellectual tradition. The issue (edited by Father Robert Imbelli) includes excellent contributions from, among others, BC's own (and MOJ friend) Greg Kalscheur, SJ, CUA President and former BC law dean John Garvey, and the lovely and talented Anna Bonta Moreland on teaching and the Catholic intellectual life in Villanova's Department of Humanities.